When I was growing up, I loved to read books, especially horror novels. As any good horror reader knows, Stephen King is one of the best.
The novel I enjoyed the most as a teenager was "Misery." The story focuses on a writer who sustains severe injuries due to a motor vehicle accident and is “saved” by a crazy fan.
I always found it terrifying that the writer did not have the ability to get out of the situation, in part due to him being “practically totally paralyzed.” Recently, the noteworthy panel decision Burr v. The Best Demolition & Recycling Co. Inc. was released and brought me right back to the fear I felt when reading "Misery."
Essentially, the applicant underwent numerous lumbar spine surgeries. Major complications resulted in applicant needing a wheelchair due to his inability to use his lower extremities. The applicant attorney argued applicant was presumed totally disabled per Labor Code Section 4662(a)(3), which states, in part, that one shall be conclusively presumed to be total in character if the injury results in finding of “practically total paralysis.”
As a surprise to many, the court concluded the applicant did not meet the threshold because he was not a quadriplegic or even close to it. However, the court did not completely define “practically total paralysis."
What constitutes practically total paralysis? Must the applicant be quadriplegic or only comparable to a quadriplegic?
For example, the applicant sustains injuries that result in severe psychological issues that prevent the applicant from being able to function on any level. The applicant literally cannot move a muscle due to the crippling fear. Does this constitute “practically total paralysis,” since the applicant cannot move, similarly to a quadriplegic?
Another example posed by like-minded thinkers from this case would be severe arthritis, preventing the applicant from being able to move his upper and lower extremities. Does this constitute practically total paralysis?
This distinction in thinking is extremely important from a defense standpoint, because Labor Code Section 4662 creates a conclusive presumption, and case law has stated, that there is no apportionment for these type of disabilities.
The truly terrifying aspect for defendants is the open Wild West field the Workers' Compensation Appeals Board has left open. If creative, applicant attorneys make the right arguments to the right judges, we could all be left in "Misery."
Hayden Beach is a workers’ compensation defense attorney and assistant managing attorney at Bradford & Barthel’s Tarzana location. This entry from Bradford & Barthel's blog appears with permission.
Aug 6-9, 2018
Join us Aug. 6-9, 2018 in Austin, TX for the 2018 DMEC Annual Conference. You’ll connect with 70 …
Aug 10, 2018
Join us for the Dwight Johnson 2nd Annual Memorial Golf Classic, each player receives a round of g …
Aug 11, 2018
Discussion: Roadmap for Prepping Your Case for Trial - Cheat Sheets and Checklists for Every Hot …